from the ALL-ACCESS-PASS dept

The UK's "Snooper's Charter" was already terrible. The draft bill, finally released earlier this month, confirmed the UK government would be mandating encryption backdoors and requiring the retention of citizens' web browsing history. On top of that, the bill confirmed dragnet surveillance by UK agencies was already in place (unbeknownst to its "oversight") and, in fact, is looking to legalize the snooping after the fact.

The Investigatory Powers Act, as can be inferred by its name, would obviously allow any number of intelligence and law enforcement agencies to access the data and communications retained by ISPs. But it's not just GCHQ, M16 and various police forces being granted access to UK internet users' web browsing history. As Joseph Cox at Motherboard points out, it's also several agencies with seemingly no need for additional access to communications data.

On page 210 of the draft Investigatory Powers Bill, a planned piece of UK surveillance legislation that was announced earlier this month, is a table of “relevant public authorities.” These authorities would “have the power to obtain communications data,” according to a briefing paper on the Bill.

As you might expect, the list includes various police forces, the Secret Intelligence Service (MI6), the UK's signals intelligence agency GCHQ, and the Ministry of Defence. However, it also includes agencies such as the Department of Health, the Department for Work and Pensions, and the Department for Transport, whose need for such surveillance data is less obviously clear.

Despite the parade of child-murdering, drug-dealing, criminal-masterminding horrors that serve as slightly-less-dry interludes to the bill's text, access to "all" retained data will be provided to a long list of mundane regulatory agencies, presumably for the sake of the children.

Her Majesty’s Revenue and Customs

Department for Transport

Department of Enterprise, Trade and Investment in Northern Ireland

A fire and rescue authority under the Fire and Rescue Services Act 2004

Most of these agencies are granted access to all "communications data." The justification for this is laid out in the table starting on page 210 of the pdf, with most of these agencies utilizing Section 46(7)(b) ("for the purpose of preventing or detecting a crime or of preventing disorder").

But the bill contains several other justifications for the obtaining of user data, not all of which seem severe enough to warrant special legislation -- like "collecting any tax, duty, levy or other imposition" or "exercising functions relating to financial stability."

Not exactly the terrorist-hunting, child kidnapper-finding wonderbill it's being depicted as -- often in its own pages. Worse, the stuff authorized here is already in place and has already been used. Jim Killock, executive director of the Open Rights Group:

“This is already happening under RIPA—there were around half a million data requests made last year. Many of these were by the police but also by organisations such as Royal Mail, the Department of Work and Pensions, and local authorities.” RIPA, or the Regulation of Investigatory Powers Act 2000, is another controversial piece of UK surveillance legislation.

In other words, the new bill is codification redundancy. The UK government is hoping to ensure the snooping it's been doing for years, via a variety of agencies, will be solidly in place for years to come.

from the here-we-go-again dept

We've talked a lot in the past about how various state Attorneys General love to grandstand in ways where they get headlines that they can hold up to claim they're "protecting the public from evil corporations," even when there's no legal basis for it. Usually it's for the sake of the headlines, because most state Attorneys General use their office as a stepping stone for Governor or Senator. In the last few years, the "pick on high profile company x" plan has involved a lot of internet companies -- because they're in the news so much. And, now, New York's Attorney General Eric Schneiderman has declared daily fantasy sports sites like FanDuel and Draft Kings to be illegal and ordered them to stop accepting users in NY.

As you probably know, daily fantasy sports sites (specifically those two) have exploded in popularity in the last year or so, mostly based on something of a loophole in anti-online gambling laws in the US. When those laws were passed, at the demands of the casino business (and bizarrely attached to a bill about protecting our ports), there was an exception for "fantasy sports." At the time, of course, this meant fantasy sports leagues where you joined for the full season, or at least something along those lines. Then Fan Duel (which started out in Scotland as a prediction market for betting on the news) realized that it could make a sort of "daily" fantasy sports league that was legal under these rules, and Draft Kings followed a couple years later. With their explosion in popularity, it's no surprise that they'd start receiving regulatory scrutiny. Indeed, Congress and the Justice Department have both kicked off investigations of these sites in the past couple of months.

It wouldn't surprise me at all to find that both sites will soon face much stricter regulatory control. That's the nature of the game, especially when it involves something that, if not "gambling" certainly feels like gambling to many policymakers, and the supporters of moral panics. Of course, rushing in to regulate will almost certainly cause problems, blocking off potential innovations in this field that could be much better for all involved.

And thus, NY's Eric Schneiderman enters the fray, reinforcing his reputation as someone willing to attack internet platforms that most users love, just because of a few small incidents of potential abuse. In this case, he's basically cut off these two platforms without any sort of court ruling.

"It is clear that DraftKings and FanDuel are the leaders of a massive, multibillion-dollar scheme intended to evade the law and fleece sports fans across the country," Mr. Schneiderman said, adding, "Today we have sent a clear message: not in New York, and not on my watch."

I recognize that some people can have serious problems with gambling that can create problems in their lives -- but many more are able to enjoy gambling for what it is. And it's kind of bizarre for Eric Schneiderman to declare "fantasy sports" gambling when he represents the state where Wall Street exists -- which involves significantly more "gambling" than anything coming out of two internet companies that many people seem to like using. People aren't being "fleeced" when they willingly participate in one of these daily fantasy sports sites. If there are -- as Schneiderman suggests -- misleading ads about the likelihood of winning or the amounts people can win, take issue with that, rather than shutting down the whole thing.

In the meantime, doing a big grandstanding rush job to shut these sites down to get all the headlines, without the benefit of a careful review and thoughtful understanding of the issues at play just seems like Schneiderman, once again, reminding innovative startups that New York is not welcoming for such innovation.

from the permission-based-innovation dept

We've been waiting forever for the FAA to finally come up with some sort of rules around public drone use in the US. Earlier this month we noted that the FAA had simply ignored the mandated deadline to put rules in place. And in the few cases where the FAA has said stuff, it's been ridiculous or just confusing.

However, reports are emerging that on Monday the Department of Transportation (which the FAA is a part of) will finally release some drone rules... and it's going to include the requirement that all drone purchases be registered with the government. Apparently this is separate from the FAA's rules, which still may not show up for a few years. While the details will matter, if the reports are accurate, that seems like a ridiculous, bureaucratic and cumbersome path to go down. While there are some fear mongering reports about errant drones flying in places they shouldn't, the vast majority of private drone use is not at all problematic. Demanding registration for every single drone, even the personal hobbyist kind, would seem like massive overkill that would likely decrease the usefulness and innovation in a very important emerging field of innovation. Also, it's not at all clear what this means for people who build their own drones (or want to).

At best, it will only serve to drive more of the best innovation out of the US, rather than enabling it to happen here. I'm sure, in typical regulator-think, the bureaucrats assume this is no big deal, because "it's just a registration," but it's still a form of friction that makes it more difficult and annoying to own drones, at a time when the market and the uses of the devices is still growing. I have no problem with using the law to go after people who use drones for illegal purposes in some way, but a registration-first system seems to assume that many uses will be illegal, and if they aren't now, it makes it much easier to criminalize lots of different uses.

from the get-your-story-straight dept

We've pointed out a few times in the past that while everyone refers to the Trans Pacific Partnership (TPP) agreement as a "free trade" agreement, the reality is that there's very little in there that's actually about free trade. If it were truly a free trade agreement, then there would be plenty of reasons to support it. But the details show it's not, and yet, time and time again, we see people supporting the TPP because "well, free trade is good." The Washington Post, for example, pushed out a ridiculous editorial arguing that the TPP is cause for celebration because it will "slash tariffs and harmonize regulatory regimes."

But it's that "harmonizing regulatory regimes" thing where the real nastiness lies, and where you quickly discover that most of the key factors in the TPP are not at all about free trade, but the opposite. It's about as protectionist as can be. That's mainly because of the really nasty corprorate sovereignty clauses in the agreement (which are officially called "investor state dispute settlement" or ISDS in an attempt to make it sound so boring you'll stop paying attention). Those clauses basically allow large incumbents to force the laws of countries to change to their will. Companies who feel that some country's regulation somehow takes away "expected profits" can convene a tribunal, and force a country to change its laws. Yes, technically a tribunal can only issue monetary sanctions against a country, but countries who wish to avoid such monetary payments will change their laws.

Remember how Eli Lilly is demanding $500 million from Canada after Canada rejected some Eli Lilly patents, noting that the new compound didn't actually do anything new and useful? Eli Lilly claims that using such a standard to reject patents unfairly attacks its expected future profits, and thus it can demand $500 million from Canadian taxpayers. Now, imagine that on all sorts of other systems.

And, add in a bunch of other rules that have absolutely nothing to do with free trade -- like granting more exclusivity on pharmaceuticals or extending copyright terms. As Tim Lee writes in a detailed report on the TPP, what's really happening here is empowering the elite incumbents:

As the opportunities for trade liberalization have dwindled, the nature of trade agreements has shifted. They're no longer just about removing barriers to trade. They've become a mechanism for setting global economic rules more generally.

This trend is alarming to Simon Lester, a free trader at the Cato Institute. "We've added in these new issues that I'm skeptical of," he says. "It's not clear what the benefits are, and they cause a lot of controversy."

And this system for setting global rules has some serious defects. We expect the laws that govern our economic lives will be made in a transparent, representative, and accountable fashion. The TPP negotiation process was none of these — it was secretive, it was dominated by powerful insiders, and it provided little opportunity for public input.

The Obama administration argues that it's important for TPP to succeed so that the United States — not China — gets to shape the rules that govern trade across the Pacific. But this argument only makes sense if you believe US negotiators have been taking positions that are in the broad interests of the American public. If, as critics contend, USTR's agenda is heavily tilted toward the interests of a few well-connected interest groups, then the deal may not be good for America at all.

Again, it's hard to see how this has anything to do with free trade. While it may have begun as a free trade process, the entire "trade agenda" has long since been almost entirely co-opted by special interests who realized that the easy way to pass legislation globally is to sneak it into a "trade agreement" behind closed doors with no public discussion or debate -- and then get it approved because it's under the banner of "free trade," even if the policies actually are protectionist for large industries.

It would almost be a clever move if it wasn't so destructive for competition and innovation.

So, remember, any time you see someone saying they support the TPP because they support "free trade," they're either lying or totally uninformed. The TPP is not about free trade. It's about the opposite. It's about locking in protectionist rules for incumbent providers, which is exactly the kind of thing free trade is supposed to take away.

This should come as no surprise. The FAA seems to be operating from the brainstem when it comes to regulating private drone use. Its previous rulings have been all over the place. On one hand, it recognizes the problems leaving this completely unregulated would pose. On the other, it seems unable to prevent itself from handing down horribly inconsistent rules.

Even Congress has recognized the FAA is unlikely to come up with a final set of drone rules any time soon.

In a report published then, lawmakers noted that they were "concerned that the FAA may not be well positioned to manage effectively the introduction of [drones] in the United States" and specifically noted that a missed deadline was likely.

The FAA honestly doesn't seem to know what it wants, at least not in terms of long-term guidance. Its stabs at rulemaking have been mostly on-the-spot determinations, each one more contradictory than the last. In 2014, it said delivering the game ball for kickoff at a college football game was not permitted, supposedly because it was "commercial use." Then it turned around and approved drone-mounted cameras for use by movie studios, something entirely commercial.

Here's a quick visual representation of how screwed up the drone rulemaking process is.

As of 2012, the FAA still forbade "commerical use" of drones. Almost two years later, another regulatory agency (the National Transportation Safety Board) pointed out that the FAA had -- nearly three decades earlier -- exempted model planes from its regulatory control. Seeing model planes as analagous to private (i.e., non-government) drones, the NTSB's administrative judge basically said the FAA can't claim control over any and all flying objects. Tacocopters were back in business. At the center of its decision was the fact that the FAA had no active policy on drone use. Its assertions that it should be able to regulate these flights was based on nothing more than the feeling it should be able to do this and an internal memo that had never made its way into the FAA's official policies.

Considering the ubiquity of the technology, it's hugely irresponsible for the FAA to handle this on a case-by-case basis, especially when this process results so often in contradictory rulings. The FAA is correct to err on the side of caution, but it seems unable to see past the dangers drones might pose to other air traffic. In doing so, it has turned its rulemaking process into the worst combination of immobilization and overreactions -- less of a regulatory agency than a catatonic being that responds quickly and violently to certain stimuli. There appears to be little rational thought guiding the process.

While its recent efforts have clarified at least some of the parameters governing private drone use, the rules are still severely limiting. That's its overabundance of caution at work. The FAA certainly doesn't want to be seen as somehow allowing the sort of actions that have given private drone use a public image problem -- like interfering with airborne firefighting operations… or being used as high-flying tools for vandalism.

What is clear is that Congress won't be pushing the FAA towards better rulemaking or holding anyone accountable for its lack of timely rulings. By the time the FAA ever gets around to issuing comprehensive guidelines, they'll already be out of date.

from the pedestrian-waving-a-red-flag dept

As a growing number of Techdirt posts on the subject indicate, drones are fast entering the mainstream. But as they become more common, and as more mishaps involving them inevitably occur, so the calls for government regulation grow louder. Fortunately for the rest of us, Colombia has stepped forward to show us some of the things not to do, as a post on PetaPixel makes clear. The new drone regulations are written in Spanish, not unreasonably, but Pablo Castro has put together a useful summary, singling out four key aspects that give a feel for the general approach.

The first is that drone operators are required to take a training course. Fair enough, you might think, but there are couple of problems with the idea:

[the course] must be taken at an aeronautics school authorised by the Aeronáutica Civil, and to date none has been authorised to teach such courses.

Also, should they be authorised, several of these schools have confirmed these courses will cost at least $5,000 USD. Oh, and by law they must be renewed every six months.

Then, of course there's the mandatory insurance. Again, that would be a reasonable requirement were it not for the following:

no Colombian insurance company offers such coverage for drones at the time of writing this article.

Point three is more subtle:

we must not fly within a 5km radius of any airport. However, we must make sure we establish radio communication with the nearest airport control tower before and during every flight.

Yes, that’s correct: all drone operators must own radios with ranges upwards of 5km and capable of the frequencies airports use, the cheapest of which cost more than a DJI Phantom and require a license to operate legally.

The final aspect is that not only must drone operators submit flights plans to the relevant authorities 15 days before they carry them out, but they must also justify why the job can't be done by conventional aircraft. As Castro remarks:

This last point contains an obvious hint as to why the Aeronáutica Civil has taken such a drastic stance on drones. It turns out this entity is tightly connected to the handful of aviation companies that used to make thousands of dollars on every flight involving aerial photography, videography, and the like, but with the widespread use of drones, their precious cash cow is dying. So unsurprisingly, corruption is the real motivation behind this new law, not the safety of our citizens.

And if corruption is not an issue, lobbying most certainly will be. As drones become more common and more capable, we can doubtless expect to hear calls for regulations restricting them in various ways. The justification may be "safety" or "national security", but in many cases, the real reason will be the fears of the traditional aviation companies that they are about to be replaced by much-cheaper drone-based services.

from the everything's-bigger-in-Texas,-including-overbroad-wording dept

There may be some method behind the zero tolerance, racially-tinged madness of the Irving, Texas, police department. The department perp-walked fourteen-year-old Ahmed Mohamed out of school and into its welcoming arms for the crime of not building a bomb. It was a clock, but because it had wires and a circuit board and was contained in a metal case and was on school grounds and Ahmed Mohamed's name is Ahmed Mohamed, the police decided that if it wasn't a bomb, it was the next best thing: a "bomb hoax."

(a) A person commits an offense if the person knowingly manufactures, sells, purchases, transports, or possesses a hoax bomb with intent to use the hoax bomb to:

(1) make another believe that the hoax bomb is an explosive or incendiary device; or

(2) cause alarm or reaction of any type by an official of a public safety agency or volunteer agency organized to deal with emergencies.

Well, Mohamed didn't pretend the clock was a bomb. Far from it. But that doesn't matter because of subsection (2), which takes away anything involving intent and puts it all in the fearful minds of nearly any government official. "Alarm or reaction of ANY type." How does one avoid causing an alarm or reaction in others, especially others that seem particularly easily alarmed? It's impossible.

Mohamed's science teacher wasn't alarmed, but he did remark that maybe Ahmed shouldn't show this project to anyone else. Mohamed didn't plan to, but the clock started beeping during another class and shortly thereafter, his English teacher started panicking. (But in the controlled sort of panic where a person demands someone hand over a bomb -- something no rational person would do if they actually thought the device in question was a bomb.)

Now, if we're going to play along with this statute's wordings, a whole lot of everyday items suddenly become much more "dangerous." Road flares, cell phones, batteries, a box full of wires, a vibrator, a doorbell, a power inverter… basically anything someone might feel could explode or could trigger an explosion would fall under the enormous shadow this statute casts.

But if we're going to play along with the police and the stupid law they used to defend their actions, we have to ask why several school officials -- including the English teacher who reported Mohamed to them -- weren't arrested as well. After all, they very likely knew they didn't have an actual "explosive or incendiary device" in their hands, and yet they approached the police department with claims that they did. This very definitely provoked a reaction and, at that point, the device was in the possession of school personnel. That's subsection (2).

By claiming a bomb was on the school's premises (when they likely knew it wasn't a bomb -- see also: no evacuation of the school, no warning sent to parents, etc.), they also violated subsection (1) of the statute:

make another believe that the hoax bomb is an explosive or incendiary device

Perp walking a few school officials out of the building and into squad cars would certainly teach them not to waste valuable law enforcement resources with stupid, fearful bullshit. But these actions would only be taken by a police department not so inclined to waste its own time investigating bombs that aren't bombs and arresting students who aren't criminals. And, as can clearly be seen, the Irving PD does not meet these standards.

from the urls-we-dig-up dept

Drones are becoming more common and more useful all the time, and at the same time, these devices are also getting to be more of a nuisance/threat for air traffic and important (sometimes life-saving) activities. Firefighters in helicopters are grounded when drones could potentially interfere with their work because it's a safety hazard to the helicopter and its passengers. The FAA hasn't yet come up with a complete set of drone-specific regulations, so for now, there's a bit of legal limbo and some strange rules to follow that don't always make sense.

from the not-helping dept

This century has produced a new lexicon that didn't exist a generation ago: Broadband. Apps. Connectivity. Streaming video. Social networks. The on-demand economy.

The new millennium has also produced a startling number of successful American companies with worldwide reach: Airbnb, Amazon, Facebook, Google, Lyft, Netflix, Pandora, Snapchat, Twitter, Uber, Yahoo, Yelp.

With so many American innovators leading and improving the global economy, it would seem natural for American policymakers to do everything possible to allow these companies to flourish. Instead, we see far too many examples of our politicians actively discouraging or burdening new services from the country's leading American companies. With good intentions, but flawed logic, politicians are jumping in to regulate these new companies, slowing the pace of innovation.

In July, Democratic New York Mayor Bill de Blasio was forced to table a plan to limit the growth of ride hailing companies like Uber and Lyft in New York after riders launched a public campaign to stop the proposal. Ride hailing services give New Yorkers and visitors access to quick, clean and affordable transportation options and help expand the city's economic growth by creating more job opportunities. So why are city regulators trying to slow their expansion and limit consumer choice?

Ride hailing companies continue to face pressure from courts and politicians who say drivers should be treated as employees rather than independent contractors. Labor unions are pushing this view, while ignoring that many ride hailing drivers are drawn to the flexibility of being independent contractors. (Meanwhile, taxicab drivers in many cities are also considered independent contractors, a fact that is rarely mentioned in these debates.)

On-demand economy services like Airbnb that link homeowners with those looking for places to stay are also under attack, as hotel unions join with the lodging industry to regulate, and in some cases ban, these services. The city of San Francisco is considering a measure that would cap Airbnb stays at 75 days, a move that Airbnb says will cost the city $58 million in tax revenue over the next 10 years. Why would city leaders seemingly ignore the potential good that immense amount of revenue could do?

Our nation was built on a foundation of freedom -- freedom to contract with each other for goods and services, freedom to innovate and create new products, freedom to start a new business and maybe even fail at it. The government should only impose itself on industry if there's a compelling public interest.

Rather than force new services to fit the framework of old rules, innovative startups offer regulators a chance to revise outdated rules to reflect a new reality. Ride hailing services naturally weed out bad drivers and poor service, especially when compared with the legacy cab drivers who aren't rated on or accountable for the quality of their service. Government can and should require driver screening and insurance, but it's the dynamic feedback nature of the wireless service that safeguards the public and benefits drivers.

Home-sharing services like Airbnb give users more options when they travel and provide extra income for homeowners. Government can and should collect hospitality taxes after some threshold of rentals, but cities benefit from the influx of tourism whether visitors stay in hotels or not. Recently, my family took a holiday in New York City, where Manhattan has few hotel options for families with children. Thanks to Airbnb, we rented an apartment for a third of the comparable hotel price.

Meanwhile, millions of Americans enjoy new services and experiences thanks to the ever evolving tech economy -- whether it's making a living from eBay or Etsy, figuring out where to eat or stay from Trip Advisor or Yelp, or enjoying new music from Pandora. Politicians need to get out of the way, let these businesses thrive and intervene only when there's a demonstrated, compelling need -- and even then, do so as narrowly as possible. The public is voting with their apps and their finger taps. Politicians would be wise to listen to the sounds of the page clicks. It's what their constituents want.

from the sigh dept

While it seems that too many people and organizations think that the problem with the internet is too much anonymity, there are those who see the opposite as being the case. Google, for instance, at one point instituted a "real name" policy for its platforms, arguing that areas like the comments section on YouTube, which required a real name login, would be worlds better if only everyone had to put their real names on their comments. It was a dumb idea for several reasons, including the complete unworkability of the policy and the fact that, haha, nothing can clean up YouTube's comments section, you silly fools. For these reasons, Google eventually dropped the policy and restored anonymity on its platforms, and yet somehow the world kept turning.

Facebook too has adopted a real name policy and it's been every bit as effective at tamping down unruly behavior. Which is to say that it hasn't. At all. And, in the meantime, valid reasons for wanting to be anonymous online are thrown by the wayside. As it turns out, one German privacy watchdog group considered this an important enough issue to go on the muscle and declare that Facebook must allow anonymous accounts on its platform. Per Bloomberg:

Facebook Inc. was ordered by a German privacy watchdog to allow users to have accounts under pseudonyms on the social network. Facebook may not unilaterally change such accounts to the real names of users and may not block them, Johannes Caspar, Hamburg’s data regulator, said in an e-mailed statement. The company, whose European headquarters are in Ireland, can’t argue it’s only subject to that country’s law, he said.

“Anyone who stands on our pitch also has to play our game,” said Caspar. “The arbitrary change of the user name blatantly violates” privacy rights.

Let's be clear: anonymous speech is an ideal I think everyone should embrace. That said, this move by the regulator is simply another step in an ongoing trend in which European companies appear to want to wield a heavy regulatory hammer on foreign, and especially American, companies. And that trend isn't a good one for a whole host of reasons. Nationalism when it comes to an internet that by definition ignores borders is going to create havoc in an online world that feeds off of open speech and communication. While privacy rights are a laudible goal, creating a patchwork of regulatory rules for companies whose business is the internet is certainly not. And European targeting of American companies in this respect is only going to create a regulatory proxy war that nobody will benefit from.

The most disappointing part of all of this is that this particular story never would have happened if Facebook, with its American roots, had simply stood up for basic American ideals, of which anonymous speech is counted. You simply can't even graze the history of America without encountering the immense importance of anonymous speech, from the publication of Common Sense to the Supreme Court's recognition of it being a basic American ideal. For Facebook to open the door to regulatory abuse by a foreign nation by not honoring this heritage is extremely disappointing. Facebook's reaction to this news is as maddening as it is nonsensical.

“The use of authentic names on Facebook protects people’s privacy and safety by ensuring people know who they’re sharing and connecting with,” the company said in an e-mailed statement.

Ensuring people's privacy by taking away part of that privacy is an interesting theory in that it's self-contradictory on its face. Like I said, there are no good guys in this story, mostly because Facebook has ensured it won't play that role.